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The Confederate statue at Second and Third streets soon will be removed. | Photo by Joe Sonka

The monument to Confederate soldiers located at the confluence of Second and Third streets soon will be taken down. This week, Jefferson Circuit Court Judge Judith McDonald-Burkman dismissed a lawsuit that sought to keep it in place. Based on the prevailing law and the evidence presented, the judge made the only call that makes sense.

In late April, Louisville Mayor Greg Fischer and University of Louisville President James Ramsey announced plans to dismantle and move the monument, which has stood at its current site since 1895.

Immediately a group of plaintiffs filed suit, including Fred Wilhite, an executive with the Sons of Confederate Veterans, and local real estate agent (and unsuccessful General Assembly candidate) Everett Corley. They argued the court must intervene to stop the planned removal of the statue. Based on the plaintiff’s initial complaint, Judge McDonald-Burkman granted a temporary restraining order preventing the city and the university from moving forward with their plans.

On May 25, a hearing was held at the downtown Jefferson Judicial Center. The statue supporters were trying to turn the restraining order into a more solid preliminary injunction that would keep the statue in place over the entire course of litigation. The city and university, represented by Jefferson County Attorney Mike O’Connell, opposed the injunction and moved to dismiss the lawsuit entirely.

In order to understand why the ultimate ruling was correct, it’s important to grasp the process. Injunctions are not casually given out by the courts. When a party seeks one, they must show that they would suffer “immediate and irreparable harm” if an injunction is not granted. That’s a tough sell. Generally speaking, your rights, your property, or your personal safety must be clearly and directly at stake. A vague sense of being offended or inconvenienced is not enough.

If that wasn’t already difficult (preliminary injunctions are rarely granted), the statue supporters also had to prove their case was even worth proceeding at all. To determine if it was, Judge McDonald-Burkman asked two key questions. First, who owns the statue? Second, are there any laws that prevent it from being moved? If the city owns it, some law or rule would have to prevent them from moving it in order for the case to continue. The plaintiffs had the burden of answering these questions.

Everett Corley walks near the construction site surrounding the monument after singing a stanza of "Dixie" back in April. |Photo by Boris Ladwig.
Everett Corley walks near the construction site surrounding the monument after singing a stanza of “Dixie” back in April. |Photo by Boris Ladwig.

At the hearing, supporters of the statue presented a number of witnesses, including plaintiffs Wilhite and Corley, who both testified that they felt a personal connection to the statue through family heritage and appreciation for Confederate veterans. But sentimental attachment is not the same as ownership, and hurt feelings alone cannot justify an injunction.

Little additional evidence of ownership was offered. Susan McCroby of the United Daughters of the Confederacy said she could find no record in her organization that the statue was ever given to the city but also nothing to suggest otherwise. Brennan Callan, neither a plaintiff nor a representative of any organization, testified that his own personal research led him to believe the Commonwealth of Kentucky owned the statue because of the way Third Street was color-coded on the website of the Louisville/Jefferson County Information Consortium. Ironically, Callan has quite a history of his own when it comes to local landmarks.

By contrast, the defendants called several credible witnesses, including representatives of Louisville Metro and the state highway cabinet. They established that the monument was not owned by the state of Kentucky nor was it subject to any rules of the Old Louisville Historic Preservation District (the monument is located one block south), the National Register of Historic Places, the National Historic Preservation Act, or the Kentucky Military Heritage Commission. The defendants also produced a newspaper article from 1895 reporting that the monument was donated as a gift to the city.

Though attorneys for the supporters argued that the city’s plan could risk the monument’s structural integrity and they feared it would be left in storage indefinitely, they could not prove that the plan amounted to the intentional “defacing, damaging, polluting, or otherwise physically mistreating” of the monument that would violate state law. The city and university, for their part, have hired experts to carefully dismantle and move the statue, and they have promised not to take it down until a new location is lined up.

It is no surprise, then, that Judge McDonald-Burkman denied the plaintiffs’ motion for injunction and ultimately dismissed their lawsuit in a concise, eight-page order. Based on the legal standards that apply to the case and the evidence (or lack thereof) presented, it was the right call.

Though the case is over, emotions are still running high. Supporters of the statue have peppered opponents with racist vitriol online. Even plaintiff Everett Corley got in on the action, calling University of Louisville professor Ricky Jones – a prominent opponent of the statue – a “damn dirty black bastard.”

But the court didn’t decide whether moving the monument is the right thing to do, or whether the Confederacy is something to be revered rather than reviled. The only thing that mattered to the court was the process. If the city owns the statue, and if there are no specific rules preventing its relocation, and if no person’s personal rights are infringed, then the court has no power to step in.

This is ultimately a political debate, best settled at the ballot box or in the public discourse rather than in the courts. Those who oppose the statue won the day because they voted for a mayor and pressured a university president who both ultimately agreed with them (even if not, perhaps, for the morality of it). Those who support the statue and want it to stay will have to accept their loss as a result of the democratic process.

Next time, they should elect a mayor who embraces the Confederacy. Or, better yet, they could finally recognize why so many view this statue as a monument to hate and slavery rather than to some vague and benevolent “heritage.” The heritage of the South was white supremacy, and its time has long passed. There is a reason why almost no one rallies for Confederate statues these days, but thousands march for inclusiveness, progress, and love.

Joe Dunman
Joe Dunman is a Louisville, Kentucky attorney whose practice focuses on civil rights and employment law. He tweets @JoeDunman and blogs at www.joedunmanlaw.com.